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What’s Up with OSHA’s New Electronic Recordkeeping Requirements?

The purpose of the proposed changes to OSHA's e-Recordkeeping rule is to eliminate the requirement that establishments with 250 or more employees to electronically submit the Forms 300 and 301, which admittedly is a burdensome task for employers with establishments of any meaningful size.

Under the current recordkeeping rule, the initial deadline for electronic submission of information from OSHA Forms 300 and 301 by covered establishments with 250 or more employees was July 1, 2018. However, OSHA has announced its intent to issue a proposal to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. OSHA will not enforce this deadline for these two forms without further notice while this rulemaking is underway.

Employers can continue to electronically report their Calendar Year (CY) 2017 Form 300A data to OSHA, but submissions after July 1, 2018 will be flagged as "Late". Remember, not all establishments are covered by this requirement. To review which establishments need to provide their 2017 data, click here.

To put it simply, OSHA has suspended the July 1 requirement that covered employers must submit the detailed OSHA Form 300 detailing all 2017 recordable injuries, and the individual Form 301 (first report of injury) for all recordable 2017 injuries. Covered employers still must submit the Form 300A, the less detailed summary of the 2017 injury data.

The purpose of the proposed change is to eliminate the requirement that establishments with 250 or more employees to electronically submit the Forms 300 and 301, which admittedly is a burdensome task for employers with establishments of any meaningful size. However, the proposed rulemaking does not address some changes sought by employer groups. Many employer associations were irked that the proposed changes do not address the Obama Administration OSHA’s position against most safety-based incentive programs, and the ill-thought-out attack on automatic post-accident drug testing.

What about Court Challenges?

Both the original electronic rule and the Trump Administration OSHA’s position on the rule have generated abundant work for attorneys on both sides of the debate.

Two federal district court challenges filed by almost 10 employer groups have been on hold for the past year, waiting for OSHA to announce proposed rule changes. Bloomberg BNA reported that as of July 27, it was not clear how the litigants would react. See, TEXO ABC/AGC v. Perez.

More interestingly, Public Citizen Health Research Group and two other health advocacy groups filed a lawsuit on July 25 seeking to compel the current OSHA to comply with the current rule. The suit contended that merely publishing a notice on its website that it plans a rulemaking did not justify refraining from following the current rule.

The suit contended that OSHA must go through the formal rulemaking process. This suit was filed before the administration released its actual notice, but Public Citizen asserts that formally issuing proposed rule changes does not affect its lawsuit seeking enforcement of the existing rule. (Link to Lawsuit. Link to Public Citizen Press release.)

Public Citizen first sued the administration in January 2018 arguing that OSHA illegally withheld submitted workplace injury records from the public after Public Citizen’s multiple 2017 Freedom of Information Act (FOIA) requests for data. The group asserted that OSHA identified more than 23,000 applicable records in response to the nonprofit group’s October and November FOIA requests but claimed the agency was exempt from FOIA because [the release of the documents] would “disclose OSHA’s techniques and procedures for law enforcement investigation.”

Public Citizen responded in part that the records were not exempt from FOIA because they were not compiled for law enforcement purposes and that release of the records wouldn’t disclose techniques and procedures for law enforcement investigations or prosecutions, according to court documents. (Link to January 2018 Complaint Seeking Injunction.)

Employer Takeaways

Employers and others have 60 days from the notice’s release to submit comments. By all means, do so, and hopefully employers and their counsel will also focus on the failure to address the attacks on post-accident drug testing.

In anticipation of submission of Form 300 and 301s, many employers found problems with their records including over- and under-reporting and many citable technical errors. Continue improving and cleaning up your recordkeeping.

Stay abreast of the various legal challenges that could change the equation.

About the author: Howard Mavity is a partner in the Atlanta office of Fisher Phillips. He founded and co-chairs the firm's Workplace Safety and Catastrophe Management Practice Group. He draws upon his past business experience in transportation, logistics, construction and industrial supply to work with clients as a business partner, and focuses on eliminating employee problems by commonsense management. Mavity has managed approximately 550 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. He has coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. He is active in rulemaking and dealings with federal and state Occupational Safety and Health Administration (OSHA) and other agencies.